Nahmod Law

Suppose §1983 Eighth Amendment actions are brought by non-prisoners such as the homeless who allege that they are punished either because of their status–see Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962), or because of their involuntary acts–see Powell v. Texas., 392 U.S. 514, 88 S. Ct. 2145, 20 L. Ed. 2d 1254 (1968)?

After an extensive analysis of these and other decisions, the Ninth Circuit held almost twenty years ago that the Eighth Amendment prohibits the enforcement of an ordinance criminalizing sitting, lying, or sleeping on public streets at all times and in all places within the city limits of Los Angeles, as applied to homeless persons between 9 p.m. and 6:30 a.m., given the unavailability of shelters in the city. The court characterized the prohibited conduct as “an unavoidable consequence of being human and homeless without shelter in the City of Los Angeles.” Jones v. City of Los Angeles, 444 F.3d 1118, 1138 (9th Cir. 2006), opinion vacated, 505 F.3d 1006 (9th Cir. 2007). Judge Rymer dissented, 444 F.3d at 1138, arguing, among other things, that the Los Angeles ordinance punished conduct, not status.

Subsequently, the Ninth Circuit, quoting Jones, reaffirmed in Martin v. City of Boise, 920 F.3d 584, 616 (9th Cir. 2019), that “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” But Martin also clarified that a city is not required to provide “sufficient shelter for the homeless.” Then, in Johnson v. City of Grants Pass, 50 F.4th 787, 113 Fed. R. Serv. 3d 1716 (9th Cir. 2022), amended and superseded on denial of reh’g en banc, 2023 WL 4382635 (9th Cir. 2023), rev’d sub nom, City of Grants Pass v. Johnson, 144 S. Ct. – (2024), the Ninth Circuit followed and applied Martin to a putative class action suit brought by homeless persons challenging the constitutionality of certain city ordinances, including no-camping provisions.

Judge Collins dissented, 50 F.4th at 814, arguing that the majority’s decision was “egregiously wrong” because, even assuming Martin was still good law, the majority misread and misapplied Martin. Further, the majority disregarded class-certification principles. Thereafter, as noted, the Ninth Circuit amended the majority’s opinion when it denied rehearing en banc. This denial was accompanied by a dissent by Judge Collins, statements of various judges respecting the denial of rehearing en banc and opinions dissenting from the denial of rehearing en banc, including one by Judge Bress, joined by eleven other judges.

Finally, as indicated above, the Supreme Court granted certiorari, reversed the Ninth Circuit and answered in the negative the following Question Presented: “Whether the enforcement of generally applicable laws regulating camping on public property constitutes ‘cruel and unusual punishment.’” prohibited by the Eighth Amendment.”

In an opinion by Justice Gorsuch, the Court, after noting the complexity of the homelessness crisis, emphasized that the Eighth Amendment was directed at the method or kind of punishment imposed by government for the violation of criminal statutes, which made it a “poor foundation” for the plaintiffs in this case. The criminal punishments imposed for violating the no-camping provisions were relatively mild. The Court also distinguished Robinson v. California as dealing with status and what a state may criminalize in the first place, unlike this case which involved conduct—such as camping on public property. Further, the Court refused to extend Robinson to this situation on the rationale that the criminalized acts were involuntary: Powell v. Texas, involving drunkenness, had already rejected this argument. In essence, homelessness was a problem to be addressed by politically accountable governments, not by the judiciary using the Eighth Amendment.

Justice Thomas concurred, 144 S. Ct. at –. Justice Sotomayor, joined by Justices Kagan and Jackson, dissented. 144 S. Ct. at –. They contended that the rationale of Robinson squarely applied here because Grants Pass had criminalized the status of being homeless in violation of the Eighth Amendment. The Court’s reasoning—that Grants Pass had criminalized conduct, not “pure status”—was unpersuasive because sleeping is an essential bodily function.

Comment

The deep issue here is whether and to what extent §1983 Eighth Amendment litigation of this kind can realistically bring about any meaningful reforms regarding homelessness. Ultimately, the Supreme Court decided–soundly in my view–that the remedies are political in nature, not judicial. The Eighth Amendment is simply not a good fit, as the Court put it. In essence, the plaintiffs’ Eighth Amendment claims are DeShaney affirmative duty claims in disguise.

See generally, on §1983 Eighth Amendment claims, §§ 3:28-3:36 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 edition)(West/Westlaw)